A-23874, AUGUST 3, 1928, 8 COMP. GEN. 54

A-23874, AUGUST 3, 1928, 8 COMP. GEN. 54

WAR RISK INSURANCE - JUDGMENTS - ATTORNEYS' FEES THE FINAL JUDGMENTS OF COURTS OF COMPETENT JURISDICTION AGAINST THE UNITED STATES ON POLICIES OF WAR RISK INSURANCE ARE TO BE PAID IN ACCORDANCE WITH THEIR TERMS, INCLUDING SUCH ALLOWANCE AS MAY BE MADE BY THE COURT THEREIN UNDER SECTION 500 OF THE WORLD WAR VETERANS' ACT OF 1924, AS AMENDED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1311, FOR ATTORNEY FEES.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 3, 1928:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION A CLAIM FOR PAYMENT OF JUDGMENT ENTERED BY THE SUPREME COURT OF THE DISTRICT OF COLUMBIA IN BENJAMIN JACOBSON V. UNITED STATES, LAW 7378, ALLOWING PLAINTIFF'S ATTORNEYS $586.50 UNDER CIRCUMSTANCES AS FOLLOWS:

BENJAMIN JACOBSON ENLISTED OCTOBER 23, 1918, AND APPLIED ON JANUARY 19, 1919, FOR $10,000 WAR-RISK INSURANCE. HE WAS DISCHARGED DECEMBER 2, 1919, AND ALLOWED HIS INSURANCE TO LAPSE FOR NONPAYMENT OF PREMIUMS DUE MARCH 1, 1920. ON DECEMBER 4, 1919, THE VETERAN FILED A CLAIM FOR DISABILITY COMPENSATION AND SAME WAS LATER ALLOWED HIM ON THE BASIS OF A TEMPORARY TOTAL DISABILITY FROM DATE OF DISCHARGE TO NOVEMBER 4, 1921, AND ON THE BASIS OF PERMANENT AND TOTAL DISABILITY THEREAFTER. ON JANUARY 20, 1926, THE VETERAN APPLIED FOR PERMANENT AND TOTAL DISABILITY RATING EFFECTIVE FROM DATE OF DISCHARGE WHICH APPLICATION WAS FINALLY DENIED BY THE UNITED STATES VETERANS' BUREAU ON APRIL 30, 1927.

AS THE CONSEQUENCE OF THE ADVERSE DECISION DENYING PERMANENT AND TOTAL DISABILITY FROM DECEMBER 2, 1919, DATE OF DISCHARGE, THE VETERAN, ON AUGUST 8, 1927, FILED SUIT ON HIS INSURANCE CONTRACT IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, ALLEGING THAT HIS INSURANCE MATURED BECAUSE OF PERMANENT AND TOTAL DISABILITY FROM DATE OF DISCHARGE. WHILE THE LITIGATION WAS PENDING, THE DIRECTOR OF THE UNITED STATES VETERANS' BUREAU ON MARCH 20, 1928, MADE A FINDING THAT THE VETERAN WAS PERMANENTLY AND TOTALLY DISABLED FROM DATE OF DISCHARGE AND TENDERED TO HIM A CHECK FOR $5,865 AS THE AMOUNT OF THE ACCRUED INSTALLMENTS OF INSURANCE MATURED FROM THE DATE OF DISCHARGE TO THE DATE HE WAS RATED AS PERMANENTLY AND TOTALLY DISABLED. THE EFFECT OF THIS CONCLUSION WAS TO ALLOW THE VETERAN TO RECEIVE THE INSTALLMENTS OF INSURANCE AT THE BEGINNING OF HIS POLICY PERIOD INSTEAD OF AT THE TERMINATION OF SAID PERIOD.

THE ATTORNEYS FOR PLAINTIFF REFUSED TO DISMISS THE LITIGATION PENDING IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA AND OPPOSED THE MOTION FILED ON BEHALF OF THE GOVERNMENT TO DISMISS SAME. PLAINTIFF'S ATTORNEYS PRESENTED TO THE COURT THE CONTENTION THAT IF THE PROCEEDINGS WERE DISMISSED THEY WOULD BE DEPRIVED OF FEES IN ACCORDANCE WITH SECTION 500 OF THE WORLD WAR VETERANS' ACT, 1924, AS AMENDED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1311, WHICH PROVIDED, IN PERTINENT PART,THAT:

* * * WHEREVER A JUDGMENT OR DECREE SHALL BE R2N AN ACTION BROUGHT PURSUANT TO SECTION 19 OF TITLE I OF THIS ACT THE COURT, AS A PART OF ITS JUDGMENT OR DECREE, SHALL DETERMINE AND ALLOW REASONABLE FEES FOR THE ATTORNEYS OF THE SUCCESSFUL PARTY OR PARTIES AND APPORTION SAME IF PROPER, SAID FEES NOT TO EXCEED 10 PERCENTUM OF THE AMOUNT RECOVERED AND TO BE PAID BY THE BUREAU OUT OF THE PAYMENTS TO BE MADE UNDER THE JUDGMENT OR DECREE AT A RATE NOT EXCEEDING ONE-TENTH OF EACH OF SUCH PAYMENTS UNTIL PAID. * * *

THE UNITED STATES APPEARS TO HAVE INSISTED IN SUPPORT OF ITS MOTION TO DISMISS THAT THERE WAS NO "DISAGREEMENT AS TO CLAIM UNDER A CONTRACT OF INSURANCE BETWEEN THE BUREAU AND ANY PERSON OR PERSONS CLAIMING THEREUNDER," WITHIN THE REQUIREMENT OF SECTION 19 OF THE WORLD WAR VETERANS' ACT, 1924, AS AMENDED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1303, CONFERRING JURISDICTION ON THE COURT TO HEAR AND DETERMINE THE CLAIM. HOWEVER, THE COURT OVERRULED THE GOVERNMENT'S MOTION TO DISMISS AND ENTERED JUDGMENT JUNE 26, 1928, IN FAVOR OF THE PLAINTIFF FOR $5,865, ALLOWING PLAINTIFF'S ATTORNEYS 10 PER CENT THEREOF, OR $586.50, AS FEES. THE UNITED STATES ATTORNEY APPEARS TO HAVE RECOMMENDED THAT THERE BE AN APPEAL FROM THE JUDGMENT OF THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, BUT BY LETTER DATED JUNE 23, 1928, HE WAS ADVISED BY THE DEPARTMENT OF JUSTICE THAT "THE MATTER WAS SUBMITTED TO THE SOLICITOR GENERAL AND HE HAS DETERMINED THAT NO APPEAL WOULD BE TAKEN.'

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR PREAUDIT A PROPOSED ALLOWANCE OF THE JUDGMENT IN ACCORDANCE WITH THE TERMS THEREOF, AND SUCH ALLOWANCE IS HEREBY APPROVED FOR THE REASON THAT THE COURT HAS ASSUMED JURISDICTION TO DETERMINE THE CLAIM NOTWITHSTANDING THE LACK OF DISAGREEMENT BETWEEN THE PARTIES AND HAS FIXED THE FEES OF THE ATTORNEYS TO BE PAID BY THE DISABLED VETERAN FROM THE AMOUNT OF HIS RECOVERY.

PAYMENT OF THE JUDGMENT AS RENDERED, WHEN IT BECOMES FINAL, IS AUTHORIZED.